Editorial of March 2016

by Allan F. Tatham, Professor at Facultad de Derecho, Universidad CEU San Pablo

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New Deal for the UK in Europe: Rewarding British particularism or Making Exceptionalism Acceptable?

And so British Prime Minister David Cameron, standing outside No. 10 Downing Street last Saturday, announced to a waiting nation (and Union) that he had wrested for the United Kingdom almost all of the concessions he had been negotiating on with his EU Member State partners. What had once seemed as an almost Herculean task to achieve and an unprecedented one at that, has led to agreement with his fellow colleagues (no doubt grudgingly for some) in the European Council. Yes, Cameron was thus able to recommend to the British people on 20th February 2016 to accept the results of his “historic” renegotiation and vote for “Bremain” this summer; yes, the European Council has expressly recognized the constitutional and legal existence of a two- or multi-speed Europe[ii]; and, yes, the EU has accepted the existence – once again but in a much stronger version this time – of British particularism, in other words “in Europe but not of Europe” so to speak.

In the months leading up to the February European Council meeting, commentators canvassed the various options open to the UK were PM Cameron to have instead recommended a “Brexit” following negotiations and which might still happen if the popular vote in the 23rd June 2016 referendum were to show a majority in favour of leaving the EU.[iii] Among the possibilities considered have been: (1) UK membership of the European Economic Area (“EEA”) through reapplying for membership of the European Free Trade Association (“EFTA”) which would create the scenario of “back to the future” for the country as it was an original founding EFTA state in 1960, leaving to join the then European Economic Community in 1973; (2) a series of bilateral agreements between the UK and the EU, following Switzerland, each agreement being separately negotiated although the format is subject reconsideration by the EU; and (3) the Turkish model including a customs union, free movement of goods, and limited movement of workers as well as forming a strategic partnership in areas of mutual interest. Yet all three options would leave the UK woefully exposed internationally and in a very much weakened bargaining position outside the EU although probably still within the World Trade Organisation.

In fact, my argument today is not really concerned with the “what-ifs” of a Brexit but rather the “what-ifs” of a Bremain. I would like to take this opportunity to turn the post-Brexit trade options “orthodoxy” on its head – to some extent – and to look at the situation from a different angle altogether. Granted that the UK has achieved its predetermined goals through the recent negotiations, by which it feels better able to protect its national sovereignty from further encroachment from the EU with specific protections for national parliaments, and exceptions to further political and economic integration. These strands, taken together with the UK already-existing opt-outs and opt-ins, create a form of national particularism or exceptionalism that will evidently allow France and Germany and like-minded states to pursue deepening integration through enhanced co-operation[iv], largely unencumbered by British objections. Such a state of affairs therefore leaves a more nuanced relationship for the UK to develop with the rest of the EU. But surely, the reasons previously submitted for the creation of the EEA and the bilateral treaty arrangements between the EU and Switzerland were based precisely on the sovereignty-sensitive nature of the Icelandic, Norwegian and Swiss electorates in particular and the majority’s antipathy towards deepening integration at the expense of their own autonomy.

The context within which the EU’s relations with the four EFTA states evolved in the 1990s has changed radically over recent years. Moreover, the accumulated experience as to how the new UK particularism pans out in future practice might cause a rethink in EFTA capitals, thus encouraging them “to come in from the cold” and to see their sovereignty and economic way of life better respected in a post-Bremain, multi-speed Europe. Needless to say, the UK’s achievements are to be coupled with further reform of the EU. If – and it is always a big “if” – this actually bears fruit as a solution, the way may be clear for the last enlargement of the Union in the West. Having achieved formal recognition of the UK’s particular identity in the EU, the result of the negotiations may not eventually be regarded as a victory for Britain alone but could be seen in a broader, European context as paving the way for the Union’s respect for a modified, 21st-century statist position within the EU, one which has itself moved beyond the rather immutable and stale “Europe des patries” arguments of the 1960s. If we are supposed to be “united in diversity,” might not the UK “reform package” herald a first step in that direction rather than an unravelling of the Union’s federalist threads which many fear?

[i] On the ideas of “Brexit” and “Bremain”, see A.F. Tatham, “‘The Art of Falling Apart?’:

[ii] See, for example, the seminal article of D. Curtin, “The Constitutional Structure of the Union: A Europe of Bits and Pieces” (1993) 30 Common Market Law Review 17 as well as J. Usher., “Variable Geometry or Concentric Circles: Patterns for the EU” (1997) 46 International and Comparative Law Quarterly 243; and A. Stubb, “Differentiated Integration” (1996) 34 Journal of Common Market Studies 283.

[iii] A.F. Tatham, Enlargement of the European Union, Kluwer Law International (2009), at 141-157 and 173-192.

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